Supreme Court’s supreme chill

On Feb. 28, the U.S. Supreme Court delayed trial proceedings in the Department of Justice (DOJ) Jan. 6 Insurrection Case against the former president. On March 4, I began the process of voluntarily relinquishing my membership in the Supreme Court Bar. This is not a protest against the former president. It is intended as a rebuke of the Court's placing a heavy thumb on the scales of justice. In December, Special Prosecutor Jack Smith requested Supreme Court review, via skipping over the intermediate D.C. Court of Appeal. U.S. v. Trump, 144 S.Ct. 539 (2023). Ironically, the Supreme Court voted to hear time-sensitive blockbuster cases, by skipping over the Court of Appeals, fourteen times between February 2019 and January 2022. Steve Vladeck, SCOTUSblog, "The rise of certiorari before judgment," https://www.scotusblog.com/2022/01/the-rise-of-certiorari-before-judgment (last visited Mar. 4, 2024). Yet the high court refused to do so, in the most consequential request of the century.

In addition to the trial court's rejection of the former president's immunity defense, the appellate judges ─ appointed by both Democratic and Republican presidents ─ unanimously held that the former President is not immune from the Jan. 6 prosecution. The D.C. Court of Appeals thus concluded: "Our analysis is 'guided by the Constitution, federal statutes, and history,' as well as 'concerns of public policy.' ... [We thus] reject all [presented] ... bases for immunity both as a categorical defense to federal criminal prosecutions of former Presidents and as applied to this case in particular." U.S. v. Trump, 91 F.4th 1173, 1189 (2024).

The Supreme Court should have denied review. That result would have expeditiously adopted the lower courts' authoritative resolution of the specious absolute immunity defense. In Donald Trump's own words, he could have shot someone on 5th Avenue in broad daylight and been immune from prosecution. In his lawyer's words, he could order military commandoes to kill political opponents, and still be immune.

The Court's now pending review implies an expeditious briefing, argument, and ultimate resolution of the former president's immunity defense. Trump v. U.S., 2024 WL 833184 *1 (2024, Mem) ("set for oral argument during the week of April 22, 2024"). But its framing of an uncomplicated presidential immunity issue yields multiple off-ramps for an end-of-term referral back to the trial court, for further proceedings after the November election. Rather than whether Trump is immune from prosecution, for the conduct alleged in this indictment, the parties have been directed to brief and argue "[w]hether and ... to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office." Id. For example, does the term "to what extent" require further analysis of the outer limits of presidential immunity? Are the parties now expected to address unpled accusations in this case, and cases against future sitting presidents? What are official acts that should trigger insurrection prosecutions? What is an insurrection? These questions are inherently complex, compared to the straightforward immunity issue.

Theoretically, there could be a mid-fall trial. Prior to the Supreme Court's Feb. 28 judicial timeout, the trial judge had allocated three months for the parties to prepare for trial. They anticipated a three-month trial. That half-year start-to-finish is a best-case scenario. It is now more likely that the trial will occur after the election. Supreme Court procedure has thus trumped substance. As former U.S. House of Representatives John Dingell famously said in the Energy and Commerce Committee he chaired: "I'll let you write the substance ... you let me write the procedure, and I'll screw you every time." John Feehery, "Feehery: Lessons learned from John Dingell," The Hill (2019), https://thehill.com/opinion/campaign/429509-feehery-lessons-learned-from-john-dingell.

The Supreme Court's impractical delay has spawned two adverse consequences, which could not have been overlooked. First, the voting public has been effectively deprived of its right to a speedy trial. This right is designed, in part, to minimize the potential impact of multiple unresolved felony charges against a defendant. But there is ubiquitous harm to the public. A significant number of polled Republican voters have now responded that a conviction would change their vote. Norman Eisen, Celinda Lake and Anat Shenker-Osorio, "A Trump Conviction Could Cost Him Enough Voters to Tip the Election," N.Y. Times (Dec. 26, 2023). The DOJ Office of Legal Policy commissioned an analysis of the 1974 Speedy Trial Act. That assessment confirmed that "One of the most important and innovative concepts of the Act is its recognition of the public's right to have defendants speedily tried. Accordingly, the limits are triggered independently of requests by the defendant." Executive Summary, "The Impact of the Speedy Trial Act on Investigation and Prosecution of Federal Criminal Cases," (1985), https://www.ojp.gov/pdffiles1/Digitization/98285NCJRS.pdf. As further confirmed by the D.C. Court of Appeals: "The federal prosecution of a former President fits ... '[w]hen judicial action is needed to serve broad public interests' in order to 'vindicate the public interest in an ongoing criminal prosecution.' The risks of chilling Presidential action or permitting meritless, harassing prosecutions are unlikely, unsupported by history and 'too remote and shadowy to shape the course of justice.' " U.S. v. Trump, 91 F.4th 1173, 1198 (2024).

There is a second adverse consequence of the Supreme Court's freezing the Insurrection Case trial proceedings. If the former president wins the November election, his lawyers have argued that he can subsequently scuttle the Jan. 6 Insurrection Case (and the Classified Documents Cases if not tried this summer), by directing the DOJ to dismiss it. Two prominent law professors recently argued that this would be a radical departure from policies and practices that have defined the DOJ for many decades. In their view:

[T]he president has no statutory or constitutional authority to control prosecutorial decision-making. [But] [h]ere, we play out the consequences of the competing view, expressed by President Trump's lawyers, Justice Scalia ... and various scholars, that the president has absolute control over the DOJ. ... [E]xercising such control would lead to the abdication of established prosecutorial norms and ethical requirements, which, in turn, would undermine the proper functioning of the judiciary. Bruce Green & Rebecca Roiphe, "May Federal Prosecutors Take Direction from the President?," 87 Fordham L. Rev. 1817, 1858 (2019).

Finally, I chose not to submit my protest directly to the Supreme Court. It has already paused the Insurrection Case proceedings via its apparent disregard for the justice-delayed-justice-denied mantra. I have, instead, penned this appeal to the Court of Public Opinion. Like the vast majority of lawyers, I have never appeared before the Supreme Court. So, my resignation is concededly symbolic. But sharing my perhaps Lilliputian act of defiance optimistically embraces Chinese philosopher Lao Tzu's aphorism: "The journey of a thousand miles begins with a single step." Perhaps fellow members of the public will contemplate other (non-violent) ways to protest a court, about which its former Justice Robert Jackson famously quipped: "We are not final because we are infallible, but we are infallible only because we are final."